EPA May Require CAFOs to Report Hydrogen Sulfide Emissions

The United States Environmental Protection Agency has announced that it is considering requiring industrial facilities, including concentrated animal feeding operations (CAFOs), to report releases of hydrogen sulfide to the Toxic Release Inventory (TRI) under the Emergency Planning and Community Right to Know Act (EPCRA). This action is consistent with EPA’s targeting CAFOs for priority enforcement of other environmental laws. Further, if EPA takes final action on this proposal, as appears likely, owners and operators of CAFOs will have to track, measure and publicly disclose hydrogen sulfide emissions. Finally, this action may portend additional regulatory requirements for CAFOs and increased scrutiny by environmental and citizen’s groups.

In 1993, the EPA agreed to add hydrogen sulfide to the list of chemical that must be reported to TRI. However, in 1994 EPA issued an administrative stay of the reporting requirements in order to evaluate concerns expressed by the regulated community that hydrogen sulfide did not meet the listing requirement for chronic human health effects. Although the final rule listing hydrogen sulfide remained in force, the administrative stay effectively deferred any annual reporting requirements for hydrogen sulfide for more than 15 years.

In the February 26 Notice, EPA summarized its 2003 Toxicological Review of Hydrogen Sulfide, a peer-reviewed evaluation of scientific literature as to the human health effects of hydrogen sulfide exposure EPA contended “that hydrogen sulfide can be reasonably anticipated to cause serious or irreversible chronic human health effects at relatively low doses and thus is considered to have moderately high to high chronic toxicity.” As to environmental effects, EPA asserted that its technical evaluation of scientific literature shows that hydrogen sulfide “can be reasonably anticipated to cause, because of its toxicity, significant adverse effects in aquatic organisms.”

Accordingly, EPA concluded that “there is no basis for continuing the Administrative Stay of the reporting requirements for hydrogen sulfide, and that the Administrative Stay should be lifted.” EPA also defended its 1993 decision to list hydrogen sulfide, asserting that its evaluation of scientific literature “clearly demonstrates” the correctness of that decision.

The EPA’s proposal is likely to be opposed by the regulated community, which has disagreed in the past with EPA about how EPA conducts its risk assessment and has argued that hydrogen sulfide is not a significant public health or environmental concern. The regulated community has noted, for example, that the federal government has not been consistent in its views about hydrogen sulfide. For example, the Congressional Research Service noted in a recent report for Congress that, although more research may be necessary, scientists generally believe that hydrogen sulfide emissions from animal feeding operations are not a large public health problem. (CRS Report for Congress, Animal Waste and Water Quality, November 17, 2008, at CRS-19)

The EPA has established a formal docket, and will accept comments on its proposal until April 27, 2010. EPA states that it will issue another Notice responding to the comments and taking “appropriate action.” As of the date of this publication, however, EPA had posted no formal comments on the proposal.

The EPA’s proposal to require CAFOs to report hydrogen sulfide emissions is also consistent with EPA’s announced enforcement priorities targeting CAFOs. In early January of 2010, the EPA proposed to retain CAFOs as a national enforcement priority, based on its belief that CAFOs “are one of the leading causes of water quality impairment in rivers, lakes, streams, estuaries, and the ocean as rain and snow carry nutrients into waterways throughout watersheds.” Although EPA has yet to issue its final priorities, CAFOs will likely remain an enforcement priority, and EPA may be more aggressive in this sector during the 2011–2013 period since discharge standards are now in place. (Fed. Register Announcement January 4, 2010.)

What might be the effects of CAFOs reporting hydrogen sulfide emissions to the TRI? Since EPCRA’s enactment in 1986, EPA has used TRI reports to support and develop additional regulation of chemical releases, including control technologies and pollution mitigation measures.

EPA must also make TRI data available to the public, furthering the statute’s goal “to empower citizens, through information, to hold companies and local governments accountable in terms of how toxic chemicals are managed.” (EPA TRI website) Environmental groups study TRI data and use it to further their regulatory agenda. Plaintiffs have also used TRI data in lawsuits to prove harm from industries, including private nuisance claims.
In summary, if CAFOs are required to report hydrogen sulfide emissions to TRI, both EPA and environmental groups will closely monitor those reports and will assess them as the basis for furthering their regulatory and litigation agendas.

Delmar R. Ehrich is a member of the environmental and litigation groups at Faegre & Benson LLP, an international law firm headquartered in Minneapolis. He can be reached via email at dehrich@faegre.com or via phone at 612.766.7000.

Delmar R. Ehrich is a member of the environmental and litigation groups at Faegre & Benson LLP, an international law firm headquartered in Minneapolis. He can be reached via email at dehrich@faegre.com or via phone at 612.766.7000.

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